The admissibility of an accident report published by the Air Accidents Investigation Branch of the UK Department for Transport (the AAIB) in civil proceedings in England and Wales has long been a grey area, but until recently there was no reported decision, on any contested issue, giving any direction one way or the other. For those who represent aircraft operators and other organisations in the aviation industry, there has traditionally been an acceptance that accident investigation reports are not admissible in civil proceedings, although, unlike in the United States, there is no legislation or regulation which prohibits this use. Why, therefore, have the courts not been troubled previously with the argument that such a report is inadmissible?

The background lies in the legal framework which grants the AAIB the power to investigate accidents and incidents and the remit of this function. The AAIB’s powers are set out in the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996, which implement the EU obligations of the UK under Council Directive 94/56/EC to carry out Annex 13 to the Convention on International Civil Aviation (the ‘Chicago Convention’). EU Regulation No 1996/2010 contains the provisions for air accident investigations which operate in Member States.

The role of the AAIB is to investigate the cause of aircraft accidents from a safety perspective. Importantly, its role is not to apportion blame or liability. With that remit in mind, it is perhaps unsurprising that the AAIB’s investigators must have access to the aircraft, its components and wreckage after a reported accident or incident and, importantly, an ability to take statements from witnesses, without impediment, as part of the gathering of evidence to determine the cause. What use then can subsequently be made of this factual enquiry, by a party seeking to rely on the published accident report in civil proceedings in England and Wales?

This question arose in a recent application before the High Court of Justice in Rogers v Hoyle [2013] EWHC 1409, where the Court considered whether an AAIB report, published in relation to a fatal aircraft accident on 15 May 2011, constituted inadmissible opinion evidence. That opinion evidence was argued to extend to all findings of fact in the AAIB report and, as such, it was argued that the report should be excluded from the proceedings before the court on the substantive dispute between the parties.

In an interesting and, perhaps, controversial decision, the Court concluded that the AAIB report was admissible as evidence in civil proceedings, and that it is for the Court to determine what weight should be given to the contents of the report. It did so having considered the relevance of the evidence contained in the AAIB report and, in particular, the evidence of the pilot and the eye witnesses in relation to the manner in which the aircraft was seen to be flown before it entered a spin, and the evidence of the AAIB’s investigators on technical aspects. The Court was persuaded that statements made to experienced AAIB accident investigators during the course of their investigations had the advantage of immediacy and so could be regarded as more reliable than a recollection at trial, which may not take place until several years after the accident.

That is difficult to dispute, but where the AAIB report does not identify the person to whom any factual statement is attributed and, where the report is in a form to draw attention to particular issues and recommendations for safety purposes, it necessarily comprises analysis and discretion from the AAIB’s perspective as to what is relevant for the accident report. The view taken by the Court is that evidential interrogation lends itself to the question of weight rather than admissibility, which reflects the position that it is for the Court hearing the evidence at trial to determine whether the evidence is persuasive and should be taken into account. The Court can accept or ignore that evidence, but the concern is that evidence which cannot be tested, for example by cross-examining the witness, will be accepted without further scrutiny.

There is a distinction between expert evidence, where the person giving evidence has specialist skill and knowledge of particular facts on which to give an opinion, and an opinion of a person who is not placed to give such evidence. The general rule is that opinion evidence is not admissible. What then is the status of the evidence in relation to issues of fact contained in the AAIB report, where those facts are derived from interviews of eye witnesses and others?